Issues in Comparative Justice - Coursework Example

Name : xxxxxxxxxxx Institution : xxxxxxxxxxx Course : xxxxxxxxxxx Title : Issues In comparative Justice Tutor : xxxxxxxxxxx @2010 Introduction The inquisitorial system is a lawful practice which aims to find out truths while concurrently representing the benefit of the state in a trial. It considers the judge not to be the passive recipient of the information but is basically responsible for supervising the process of gathering the evidence needed to solve the case. This is done by questioning all the witnesses involved in a trial, including the defendant and the respondent. Its opponent is the adversarial system which seeks the facts by pitting the parties against each other and the competition acts as the judge (Paoli, 2003). Inquisitorial style was developed by the Catholic Church during the period of medieval when the courts of ecclesiastical adapted the methods of judging which required the judge to give an oath to the defendants and witnesses. However, the use of this system diminished in 16th century when the court of the Star Chamber became common but after the Revolution of the French, a refined style of the Inquisitorial was developed in France and Germany and is used to date in most of the countries. The most recent reform in the Italian law was as a result of the introduction of the new code of the procedures of criminals in 1988. This got rid of the fascist-influenced code of criminal procedures of 1930 and completely changed the whole approach of Italian procedure law. It has adapted the adversarial approach used in the Anglo-American style. The Hitherto Italian procedures was formulated from the French code d’instruction criminelle whose foundation was the inquisitorial system used in most of the nations of Europe, both Eastern and Western but the new code follows the approach of adversarial used in the Anglo-American style. These reforms have greatly affected the fight against Mafia (Schwikkard, 2008). Why Italian inquisitorial system became adversarial Italy radically changed its courting system from the inquisitorial system which was commonly used in most of the countries to the adversarial method during the late 1980s. This was as a result of the perceived problems of intimidation and corruption of the judges and the incompetence of the Legal system in Italy. The main feature of the criminal code during the reformation time was the disappearance of guidice istuttore (the investigating judge) and the emergence of the prosecutor as the chief actor in the pre-trial stage. The user of the compulsory prosecution had reduced embracing that of plea agreement and the process followed during the trial period was more adversarial, assigning the controlling officer a principally passive role of making sure that there is respect to the new rules of evidence in which the court could adduce extra evidence after the cases were closed only when it was absolutely important. The cases which brought about the changes in the system were solved using the new style hence all the courts adopted it although the "chronic incapacity of the politicians to devote adequate resources to the system coupled with the equally chronic incapacity within the system to organize itself, given the available resources." (Paoli, 2003). The adversarial system is more transparent demanding both parties to disclose their full truths hence more justice is revealed during the proceedings of the trials and the inactive role of the courts are changed to being more practical concerning finding the facts in a case and the fairness of the procedures used during the trials. It controls the international law scenes; a similar process is occurring with regards to the continental systems under the influence of international human rights instruments. In this system, the inactive role of the court is being changed to a more pro-active one with respect to fairness in both the procedural and truth finding processes. Italy preferred the adversarial system to make their processes more efficient after being influenced by the developments in the system of Europe which indicated some trends of improvements towards the systems of hybrids in the pursuit of greater efficiency. The jurisdiction of the common law makes the controlling judicial officer more active in the similar goal. Therefore the system which considers all the above tendencies is a hybrid one and it is only after the collectiveness of the efforts of all the role players that the common objectives of the system of the criminal justice can be achieved (Schwikkard, 2008). Mafia in Italy Mafia has been a long time negative sub cultural phenomenon in Italy which has resulted to oppression of the peasants; it also causes many cases of violence and intimidation of the legitimate institutions. For example, in 1992 and 1993 a number of bombing highlighted the Cosa Nostra’s terror campaign against the Italian state. Two of the very famous judges in the fight against this movement were murdered, thus it was clear that corruption permeated both social and political life in Italy. Mafia was enforced by the fact that it had aligned itself with the legal economy and alliances of international criminal. It is an organized crime which holds some complex and out standing roles in the society. So as to fight their opponents and ensure continuity, it has well outlined rules which are followed so as to enable them stick to their traditional activities. They also choose the most profitable and engage in them for the economic support. The number of their organizations based increased due to their complex market and their activities were more articulated. The society has increased the production of the mafia criminals due to its major characteristics and the intertwining of the illegal and the legal economies that have grown together leading to connection between crime and politics, so mafia does not invade the nation but it is the nation that produces more and more groups of its type (Paoli, 2003). Changes in the criminal justice so as to fight Mafia The Italian legislation strategized ways of fighting the activities of mafia which had greatly increased. 114 laws were introduced which led to the Changes in its Inquisitorial Criminal Justice System in Italy. All these laws were based on the crimes which resulted from mafia and are looked at as the emergency situation to the offenses. In recent years, some significant reforms have been done in the criminal code and the most importance is associated with the abolition or minimizing the mafia practices. New laws have been formulated against any activity related with mafia and they have shown some positive outcome concerning the intended purposes. For example, a new law is modified for the crimes against public administration (law 86 of 1990), against crimes related to laundering of money and proceeds of crime- law 328 of 1993, abuse of official duties by law 234 of 1997 and law 66 of 1996 is modified against issues related to sexual violence. All these are some of the examples of crimes which results from the practice of Mafiosi. For any citizen to be able to read and understand these laws, the Italian criminal code was translated and published in all the major languages in Europe: English, French, Spanish and Germany. This made it easier for the legislative officers to implement it (Koppen & Penrod, 2003). Complementary legislation has greatly been considered to be an important source of criminalization. Its use has been embraced and increased over the years in order to encourage the lawful researchers to confirm that the Rocco Code is just a supplementary but not a main source of the criminal justice system of Italy. As a result many other complementary provisions of unique criminal laws are made and regularly reviewed to cover all the up coming crimes in the society. These numerous provisions provide alternatives for the frequent reforms in the criminal justice. Complementary legislation has added on the list of the neutral incriminating issues which are carefully controlled by the law and are mostly assumed to be right by the society. These assumptions cause substantial problems regarding the proportionality of the ruling with guilt hence those concern had to come up with ways of proofing some of these things to be illegal so as to be able to punish those caught doing them or to stop their spread in the society (Vogler, 2005). To date Criminal Code of Procedure was accepted in 1988 to replace the previous one which was formulated in 1930s and was based on the authoritarianism of the then existing political regime. It portrayed some characters of the Italian Criminal Procedure Code through greatly emphasising on the pre-trial phase and almost getting rid of the participation of the counsel of defence in the chapter. After the Fascist regime was overthrown, a government commission was formed to review and make the necessary changes in the code; by 1955 a new code was ready which aimed at enacting the principle of the new constitution. This constitution took over from the commission and amended more than two hundred articles of criminal code to ensure full recognition of the defendant’s right to defence. Further modifications were made to emphasize the protection of civil rights during the proceedings (Schwikkard, 2008). In 1970s some acts were approved to enable the government adopt a new criminal procedure code but the process was aborted by the rise of terrorism which brought about an emergency situation which led to an adoption of a new and a more protectionist criminal law system. However in 1988, a new law was enacted which led to the current criminal procedures being into force in 1989. This new law held anyone found committing a crime related to mafia to be guilt hence punishable. The new code, differently from the old one abandoned the inquisitorial model and based the system of criminal procedures on the accusatorial model. All the evidence of crime was assigned to the trial hearings and not from the pre-trial investigative phase and the substitute procedures were fully modified and reinforced with the aim of reforming the criminal law process (Vogler, 2005). More modifications were done on the criminal justice system which was created in 1988 as a result of both the legislator and the constitutional courts in 1992. More weight was put on the statements which were made during the pre-trial phase so as to deal with the emergency crime situations resulting from the worsening of the mafia phenomenon and other forms of organized crimes in Italy. For example, with its decisions, number 24 of 1992 article 195, paragraph 4 of the criminal procedure codec was declared by the constitutional court to be conflicting with the constitution as it banned the judicial police from the declaration which the witnesses made to them hence the cases were not sentenced with truthfulness but on the competition of the two parties under trial. The constitution also acknowledged with its decisions, number 255 of 1992, article 500, and paragraph 3 of the criminal procedure code to be unconstitutional as it did not visualize the inclusion in the court hearing file of the declarations that the witnesses might have made previously to the public prosecutor in case they were contested during the hearing of the trials (Fairchild & Dammer, 2001). Many scholars claimed that the examples of the above changes which were made by the constitutional court to the criminal law procedures prevented the court from hearing their central role which was a contradiction of the accusatorial system. This ended up in a fully upheaval of the code loosing its unique clearly accusatorial character without taking on another specified profile. This is because the authority of the constitutional court was inadequate to bring a return of a rational and organic inquisitorial type of the system of criminal law. As a solution to the problem which was characterised by criminal law with high degree of contradictory, a number of political based parties suggested that the principles which were stimulating the accusatorial process be involved in the fundamental law of the Republic itself. This was so as to protect the constitutional court from barring any other reforms meant to return the code binding by its initial version. Law 332 of 1995 was an important change in the criminal procedure code as it tried to limit the methods of the intended to control personal freedom by creating difficulties when resorting to them. These were some of the efforts to try to get rid of the practices which were seen as illegal during the period of the implementation of the new laws; these processes were cause by the practice of mafia in the society. The code also contains laws against any crime or the criminal procedure provisions, for example, law 86 of 1999 provides for all the crimes which are against the public administration to be dealt with by the tribunal. While those caught with this kind of offence could only be judged if their cases are heard by a judge and ruled according to the evidence given. This resulted to decrease in the practice of mafia because the Mafias feared by witnessed by other hence be punished by the court of law (Brackett, 2002). The new Italian criminal law is divided into various bodies of judicial which are based on the level of the responsibilities assigned. For example, the lower court which is led by only one judge and handles the simple cases, tribunal for related cases and the court of Assizes. All these courts only differ in the complexity of the cases that they handle but their processes of ruling are similar. The crimes committed by mafias are reduced because of the availability of many different courts to handle any level of it. The NGO documentation on the law enforcement in Italy against mafia and other form of organized crime, An anti- mafia committee was formed in 1993 to investigate on the relationship between mafia and politics. The report on this document was based on an organized crime known as the Cosa Nostra and the committee said that it compared to other associations of mafia but had an outstanding tradition of both comrade and financial power. They suggest that if this organization could be defeated, all the other junior ones could be weakened leading to their defeat. It strategized its own traditions which were followed by the other organizations not through modifications but by violence and corruption. Mafia and politics have a cohabitation relationship which is ideal to the infiltrated organs of government, police, magistrates and local authority (Squires, 2010). The cohabitation of the politics and mafia has a positive influence in the fight against the illegal organizations. The legislative body of government would easily learn the plans of the organization and attack them when in action, thus even if they do not completely abolish the organizations, they are able to control the crimes that they are likely to commit. The masonries (freemasonry) is the bond which was created by law to connect the Cosa Nostra with the public officials and ensures that the relationship is continuous and very organic. The executives of Massoneria are a combination of the mafias and the government officials so as to enhance interaction and to open a way of giving their opinions concerning each body (McDonald, 2000). So as to defeat Mafia, the state had to adopt an important characteristic of double standards of joining them and still fighting their decisions. This is because mafia had a good foundation after existing for a long period of time without being considered as an illegal body, thus it even had qualities of any other political subject in that: it had all the individual characteristics of a classical social group with rules governing them, administrative force, physical coercion and territorial extension. It is also recognized as an organization which has rights to contribute or determine options regarding the manoeuvring of power and allocation of resources. McDonald (2000) argues that interaction between politics and mafia cannot be seen as just a simple collaboration but is based on the encounter between the crimes institutionalized and criminal based. This has helped the government to fight against the illegal movement by putting off all their activities through implementing laws which can hold them guilt. In January 2010, the suspected mafia mobster Giuseppe Bastone was arrested by the Italian paramilitary carabinieri. This suspect had been hiding for six months in the tiny underground bunker. The place was equipped with all the necessities including the luxuries so as to ensure that the one residing in there would be comfortable with no need of getting out or needing company of anyone. This arrested was considered to be one of the most successful actions by the Italian police and the government in general for the recent months. Last year, some detectives arrested 70 suspected members of the Naples-based Camorra mafia including those who were considered to be the most dangerous fugitives who had been targeted for almost the whole year. In November three other brothers were captured. The Italian Prime Minister Silvio Berlusconi comments that "If there is a government that, more than any other, has made fighting the mafia one of its clearest and coherent goals, it is my government." Robert Maroni, his interior Minister also declares that their government has affirmed total war against mafia (Squires, 2010). Conclusion Italy is one of the most established national identities but its performance has been affected by the Mafia movement which was established long ago and existed as a legal organization until recent when the government started realizing that their activities are illegal and began strategizing ways of fighting it. However, it is facing some challenges tying to fight mafia because of its firm foundation and the organization in its leadership. The recent changes in the Inquisitorial Criminal Justice System In state has had a positive impacts in the fight against this movement because of the establishment of well organized tribunal courts whose ruling was based on witness of evidence hence the mafias developed some fear of openly committing crimes. Some laws were also formulated against some of the activities of the mafia hence they could be held guilt in a court of law. When this plan failed, the government came up with an idea of creating a good relationship with the offenders so as to learn their operations and use the ideas to fight them. This process has some positive results because today efforts of the government to fight mafia can be seen through the number of the suspects arrested. Bibliography Squires N, 2010, Italy claims finally defeating the mafia, Squad digital, Rome, Schwikkard P, 2008, Possibilities of convergence: an outside perspective on the Convergence of criminal procedures in Italy, Kluwer, Rome. Brackett K., 2002, Criminal Justice and Crime in Late Renaissance Florence, Cambridge University Press, Cambridge. Fairchild E. & Dammer H., 2001, Comparative criminal justice systems, University of Michigan, Michigan. Koppen P. & Penrod S, 2003, Adversarial versus inquisitorial justice: psychological perspectives on criminal justice systems, Springer, Georgia. Paoli L., 2003, Mafia brotherhoods: organized crime, Italian style, Oxford University Press, Oxford. Vogler R, 2005, A world view of criminal justice, Ashgate Publishing Ltd, Rome. McDonald W., 2000, Crime and Law Enforcement in the Italy against mafia and organized crime, Anderson Publishing Co., Cincinnati. Read More